Ninth Amendment: A haven in the country for gay men

Through the years, justices, advocacy groups, and individuals such as Dr. Jack Kevorkian have cited the text of the Ninth Amendment as providing the right to: Privacy, abortion, travel freely, education, death, private sexual acts and gay rights. And perhaps that’s why sanctuaries like the Circle JJ Ranch, a campgrou...

Don’t worry. You still are smarter than a fifth-grader. For two centuries, the country’s brightest legal minds haven’t quite been able to agree on the meaning of the 21 words that are the Ninth Amendment in the Bill of Rights: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

So simple, yet so complex.

Even Robert H. Jackson, a former U.S. attorney general and U.S. Supreme Court justice until his death, threw up his hands on the subject. He didn’t even attempt to define it in a book published posthumously in the late 1950s.

“The Ninth Amendment rights which are not to be disturbed by the federal government are still a mystery to me,” he wrote.

Through the years, justices, advocacy groups, and individuals such as Dr. Jack Kevorkian have cited the text of the Ninth Amendment as providing the right to: Privacy, abortion, travel freely, education, death, private sexual acts and gay rights.

And perhaps that’s why, in this melting pot nation, that sanctuaries like the Circle JJ Ranch have managed to coexist peacefully with their sometimes not-so-like-minded neighbors, in southern Carroll County. The Ranch is a gay campground. Thirty acres of campers, motorhomes and tents — all occupied by gay men.

“Most gay couples could go to a ‘regular’ campground and feel welcome ... but underneath they’re not completely welcome,” explained Ranch co-owner Jerry King. “We wanted a place where two guys could hold hands and no one would give it a second thought; where they don’t have to worry about what others are thinking.”

RANCH LIFE

A wooden sign on top of an ice cooler outside the office declares that section of campground as ‘Homo Heights.’ Up the gravel road a bit, a similar sign, attached to a tree, notes that you have entered ‘Beverly Hills.’

“All that was kind of a joke,” said Jim Conely, King’s partner in love for more than two decades and his business partner at the campground since they opened 12 years ago. “The Beverly Hills people ... were trying to say they were a cut above.”

On a busy weekend, as many as 350 gay men camp at the Ranch. Women are welcome too, but usually don’t come. Clothing is optional, but it’s hardly a decadent, pornographic free-for-all, a stereotype many campers laugh at. For the most part, it’s a regular-looking campground. Men in lawn chairs drinking beer and laughing. Men grilling burgers and hot dogs on their patios. Men sitting quietly by a campfire. Men walking hand-in-hand as the sun sets.

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“Nice to find a place where there’s no judgment,” said 45-year-old John Russell.

Russell lives near Columbus. Growing up, he never had a serious heterosexual relationship. At age 24, he admitted to himself that he was gay. Today, he’s proud. He’s encouraged by what he’s witnessed from a younger, more open generation.

“But I long for the days when my partner and I can have the same rights as (a husband and wife),” he said. “I pay taxes ... but we’re still behind in end-of-life issues ... property rights ... and being able to finally get married.”

If gay marriage were legal in Ohio?

“We’d be there at 9 a.m. Monday; we already have the rings,” he said.

Mike Mann, 51, of Canton, works as a respiratory therapist at a local hospital. The man he calls his husband desperately wanted to speak for this story, but feared retribution at his workplace. Mann’s husband of 18 years is a divorced father of one. He recently started a new factory job — and all his co-workers assume he’s straight.

“How bad is that ... that he has to be afraid?” Mann said.

Mann said gay couples don’t want special rights. They just want the same rights as those available to straight couples — income tax filing benefits, health care benefits, retirement income and property rights, to name a few.

NIGHT LIFE

Everything at the Ranch reeks upscale. Some campers have spent as much as $100,000 to landscape their sites with waterfalls, ponds, stone walls and elaborate, winding decks. Besides a hot tub, the camp is outfitted with an outdoor swimming pool, sauna, lodge building, a rental cabin (dubbed tongue-in-cheek as the Queen suite), and a dance hall/club that features a DJ and themed weekend nights for those seeking social activity.

A recent Saturday was toga night.

“It’s a chance to just cut loose a little,” explained Mann, dressed for the event.

King, the co-owner, was born in Carroll County, but left the area for San Francisco and Key West. After seeing other gay campgrounds, he and Conely agreed to come to Carroll to open one of their own.

“We had some problems at first,” King recalled, referring to some minor vandalism.

That ended within the first couple years.

Most campers, King said, are middle-aged couples. However, there also are those who met via the Internet and get together for the first time at The Ranch. There are bisexual married men. There’s even a group that King said tells their wives they are “fishing buddies,” who come for many weekends in the summer.

“They say their wives don’t know; I tell them they are crazy ... ‘your wife knows. She may not say anything about it, but she knows,’” he said.

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THE NINTH

The very existence of the Ninth Amendment was because the Federalists and Anti-Federalists disagreed on the need for a Bill of Rights to begin with. The Constitution, drafted in 1787, originally contained no Bill of Rights.

Federalists such as Alexander Hamilton and James Madison didn’t want it. They said there was no need to spell out rights, because they were implied, if the rest of the Constitution was silent on the matters. They were concerned that spelling out certain rights would conversely imply more federal government powers.

Anti-Federalists acknowledged it was impossible to enumerate every human liberty imaginable. However, Thomas Jefferson replied with this, “Half a loaf is better than no bread. If we cannot secure all of our rights, let us secure what we can.”

And so the Ninth Amendment was born.

It’s the only provision in the Bill of Rights that wasn’t based on English Law. And Madison, who at first opposed the Bill of Rights, wound up drafting the Ninth Amendment during the First Congress.

It read like this:

The exceptions (to power) here or elsewhere in the constitution made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations on such powers, or as inserted merely for greater caution.

It ultimately was ratified as this:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

For the next 174 years, no U.S. Supreme Court decision made more than a passing reference to the enigmatic Ninth Amendment. It wasn’t until Griswold v. Connecticut (1965), when that state attempted to ban birth control, that justices weighed in on the meaning of the amendment. And even then, they didn’t agree.

Justice Arthur Goldberg, writing a concurring opinion for the majority, concluded that “other fundamental personal rights should not be denied protection simply because they are not specifically listed.” Dissenting Justices Hugo Black and Potter Stewart said the Ninth Amendment should not have been used as a basis for a decision in the Griswold case, and added the language does not give them power to enforce any of the unenumerated rights.

Michael W. McConnell, director of the Constitutional Law Center at Stanford University, has noted that scholars usually have two basic theories on the meaning of the Ninth Amendment: 1. The federalism model, which views the Ninth and 10th amendments as working in tandem as limitations on expansion of federal government power. 2. The natural rights model, based on an assumption that we all have too many rights to ever list.

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McConnell himself has rejected both.

He’s written extensively on the subject, and spoke during a seminar in New York in 2009: “That the rights retained by the people are indeed individual natural rights, but that they enjoy precisely the same status and are protected in the same way that they were before the Bill of Rights was added to the Constitution,” he said. “They are not relinquished, denied, or disparaged, but neither do they become constitutional rights. They do not become trumps.”